from the another-one-down dept

The mass infringement lawsuit shakedown plan is looking shakier and shakier these days as more and more courts keep hitting back on these cases. More and more judges (with one notable exception) are recognizing that these lawyers are just using the court system to pressure people into paying up... and they don't seem to like it very much. The latest involves Chicago divorce lawyer-turned-porn P2P shakedown lawyer, John Steele. Steele has already had some trouble with judges buying his arguments. Steele is also the guy trying to set these lawsuits up as reverse class actions -- a strategy that failed miserably the first time around.

However, despite that loss, Steele has tried again for another reverse class action. Earlier, the judge denied Steele's motion for expedited discovery. Expedited discovery is a pretty standard thing that almost every court grants as a matter of course, but we've now seen a few courts in these mass infringement lawsuits refuse, after realizing the only purpose behind expedited discovery is to get the names/addresses of people in order to hit them up with settlement offers. In this case, the judge specifically ordered the court clerk not to issue subpoenas in the case, to stop Steele from getting the info he needed to pressure people into settling. Steele still pushed forward, trying to get the court to approve things so he could send out the subpoenas and get the names.

But the judge is having none of it.

In an incredibly short, but clearly well-thought out response (pdf) to Steele, Judge Harold Baker, makes it clear that he wants no part of this. First, he points out that IP addresses do not match up well with individuals, and even points to the recent story of a home being raided for child porn due to an open WiFi router, to highlight that an IP address does not show who's actually doing the downloading:

Moreover, VPR ignores the fact that IP
subscribers are not necessarily copyright infringers. Carolyn Thompson writes in an MSNBC
article of a raid by federal agents on a home that was linked to downloaded child pornography.
The identity and location of the subscriber were provided by the ISP. The desktop computer,
iPhones, and iPads of the homeowner and his wife were seized in the raid. Federal agents
returned the equipment after determining that no one at the home had downloaded the illegal
material. Agents eventually traced the downloads to a neighbor who had used multiple IP
subscribers’ Wi-Fi connections (including a secure connection from the State University of New
York). See Carolyn Thompson, Bizarre Pornography Raid Underscores Wi-Fi Privacy Risks
(April 25, 2011), http://www.msnbc.msn.com/id/42740201/ns/technology_and_science-wireless/

The list of IP addresses attached to VPR’s complaint suggests, in at least some instances,
a similar disconnect between IP subscriber and copyright infringer. The ISPs include a number
of universities, such as Carnegie Mellon, Columbia, and the University of Minnesota, as well as
corporations and utility companies. Where an IP address might actually identify an individual
subscriber and address the correlation is still far from perfect, as illustrated in the MSNBC
article. The infringer might be the subscriber, someone in the subscriber’s household, a visitor
with her laptop, a neighbor, or someone parked on the street at any given moment.

But, much more importantly, Judge Baker notes the serious fear of chilling effects from these lawsuits, pressuring people to settle even if they are innocent, and even calls out one of Steele's other cases, where Steele has dropped a bunch of defendants who settled. While that may have been good for Steele at the time, Judge Baker uses it to point out that this appears to be Steele's business model, rather than a real legal situation, and he sees no reason to help Steele out in this fishing expedition to scare people into settling:

In Hard Drive Productions, Inc. v. Does 1 - 1000,
counsel sought leave to dismiss more than 100 Doe defendants, stating that some of the Does had
“reached a mutually satisfactory resolution of their differences” with the plaintiff.... Orin Kerr, a professor at George Washington
University Law School, noted that whether you’re guilty or not, “you look like a suspect.”
Could expedited discovery be used to wrest quick settlements, even from people who have done
nothing wrong? The embarrassment of public exposure might be too great, the legal system too
daunting and expensive, for some to ask whether VPR has competent evidence to prove its case.
In its order denying the motion for expedited discovery, the court noted that until at least
one person is served, the court lacks personal jurisdiction over anyone. The court has no
jurisdiction over any of the Does at this time; the imprimatur of this court will not be used to
advance a “fishing expedition by means of a perversion of the purpose and intent” of class
actions.

from the fishing-expedition dept

We recently wrote about an attempt by one of the growing number of mass P2P pre-settlement lawsuit lawyers, John Steele, to file a reverse of defendant class action lawsuit to try to get around the issue of misjoinder in combining a bunch of totally unrelated individuals in a single lawsuit. Typically, of course, class action lawsuits involve a class as the "plaintiff" not the defendant. It's not unheard of to have a defendant class action, but it is rare. Either way, the judge doesn't seem to be buying it. In a recent hearing the judge noted that the whole thing felt like a fishing expedition, and barred the court from issuing any subpoenas until an adversarial hearing was held. It's unclear who will represent the still anonymous "class," but hopefully the judge takes a note from another court and brings in experts like Public Citizen and the EFF.

from the against-the-class? dept

Wow. We've noted that the various lawyers who have jumped on the mass copyright infringement shakedown bandwagon (mostly for clients in the porn business) have been running into some serious problems on the issue of "joinder" -- tying all of those defendants into a single group. You're only supposed to be able to do that if they were all involved together in breaking the law. So far, the courts haven't been buying it for the most part. However, it appears one of the lawyers involved in these cases, John Steele, is trying a bit of a novel strategy: a class action lawsuit in reverse.

Normally, a class action lawsuit involves a "class" of related people as the plaintiffs. Steele is arguing that you can lump all of the defendants into a class as well:

This Court has personal jurisdiction over the Class because the putative named class representative Defendants are residents of Illinois. This Court has in personam jurisdiction over absent class members because due process is satisfied by providing them with best practicable notice, an opportunity to opt-out, and adequate representation. In addition, the Court may exercise personal jurisdiction over individual Defendants because their infringing activity should have reasonably been anticipated to violate the Copyright Act in this jurisdiction. Therefore, due process is satisfied because any person engaged in such activity could reasonably anticipate being haled into this jurisdiction where he or she violated the Copyright Act.

Now, there have been a few examples of such defendant class action lawsuits in the past, but they're very rare, and usually require a pretty damn good reason. I'd be surprised if the judge grants it here. As in other cases like this, judges have pointed out that the mass group of defendants sued are not really comparable, as they each may have extremely different defenses, and were not really connected to each other in any way at all.

On a totally separate note, what is it with the lawyers bringing these mass P2P porn cases all having names out of some bad novel? Evan Stone. John Steele. Ken Ford. Is there some rule that you need a forceful, single syllable last name to be one of these lawyers?